R v Nl - [2011] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v NL [2011] QCA 113

PARTIES:

R
v
NL
(applicant/appellant)

FILE NO/S:

CA No 256 of 2010
DC No 63 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application (Extension Granted)

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

3 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2011

JUDGES:

Fraser and Chesterman JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application for leave to appeal against sentence is allowed.

2.    The appeal is allowed.

3.    The sentence imposed in the District Court on 6 September 2010 is varied by:

a. Reducing the term of imprisonment of four and a half years imposed on the count of stalking to three years;

b. Setting aside the order that the term of imprisonment of six months imposed on the count of dangerous operation of a vehicle be served cumulatively upon the sentence for the count of stalking, and instead ordering that the sentence be served concurrently;

c. Setting aside the order fixing the appellant’s parole eligibility date at 22 October 2011 and instead ordering that the term of imprisonment of four years imposed on the count of arson, and the term of imprisonment of three years imposed on the count of stalking, be suspended after serving one year, four months and fifteen days for an operational period of four and a half years.

4.    The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty and was sentenced for offences of stalking, dangerous driving, burglary, arson, breach of bail and breach of release conditions – where the sentence for dangerous driving was ordered to be served cumulatively – where the applicant argued that the sentencing judge erred by not giving reasons for the order of cumulative imprisonment and that there was no basis for such an order to be made – whether the sentencing judge failed to give reasons – whether an order for cumulative imprisonment was within the sentencing judge’s discretion

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to four years imprisonment for the arson offence, four and a half years imprisonment for the stalking offence and six months imprisonment for the dangerous driving offence – where the effective sentence was five years and two months imprisonment with parole eligibility after 20 months – where the stalking offence took place over a period of 24 hours following the breakdown of a long term relationship and where the applicant was attempting to obtain funds to return to his family interstate – where the applicant argued the sentencing judge gave no or insufficient weight to mitigating features – whether the sentence imposed was manifestly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nl

Details

AGLC: R v Nl [2011] QCA 113
Case: [2011] QCA 113
Decision Date: 3 June 2011

CaseChat Overview and Summary

The case before the court was an appeal against sentence by an individual who had pleaded guilty to various criminal offences, including stalking, dangerous driving, burglary, arson, and breaches of bail and release conditions. The applicant contested the sentence imposed by the District Court, arguing that the sentencing judge erred in not providing reasons for ordering cumulative imprisonment for the dangerous driving offence and that there was no basis for such an order. Additionally, the applicant claimed that the overall sentence was manifestly excessive and that the sentencing judge failed to give adequate weight to mitigating factors. The appeal was heard in the higher court which had jurisdiction to review the decision of the District Court.

The central legal issues before the court were whether the sentencing judge erred in not providing reasons for the order of cumulative imprisonment and whether such an order was within the sentencing judge’s discretion. Additionally, the court had to determine if the sentence imposed was manifestly excessive and whether the sentencing judge failed to appropriately weigh mitigating factors. These issues required the court to examine the principles of sentencing and the discretion afforded to the lower court in determining the appropriate punishment for the offences committed.

The court found that the sentencing judge did indeed err by not providing reasons for the order of cumulative imprisonment and that the order was not justified under the circumstances. The court held that the order for cumulative imprisonment was outside the sentencing judge’s discretion in this case. Furthermore, the court concluded that the sentence was manifestly excessive because the sentencing judge did not give sufficient weight to the mitigating factors presented by the applicant. As a result, the court allowed the appeal against sentence and varied the original sentence, reducing the term for the stalking offence, ordering concurrent imprisonment for the dangerous driving offence, and adjusting the parole eligibility date. The sentence for the arson offence, however, was confirmed in its original form.

In summary, the court allowed the applicant’s appeal against the sentence and varied the original sentence. The term of imprisonment for the stalking offence was reduced, the order for cumulative imprisonment for the dangerous driving offence was set aside and replaced with an order for concurrent imprisonment, and the parole eligibility date was altered. The sentence for the arson offence remained unchanged.

Orders

Orders of the court

1. The application for leave to appeal against sentence is allowed.

2. The appeal is allowed.

3. The sentence imposed in the District Court on 6 September 2010 is varied by:

a. Reducing the term of imprisonment of four and a half years imposed on the count of stalking to three years;

b. Setting aside the order that the term of imprisonment of six months imposed on the count of dangerous operation of a vehicle be served cumulatively upon the sentence for the count of stalking, and instead ordering that the sentence be served concurrently;

c. Setting aside the order fixing the appellant’s parole eligibility date at 22 October 2011 and instead ordering that the term of imprisonment of four years imposed on the count of arson, and the term of imprisonment of three years imposed on the count of stalking, be suspended after serving one year, four months and fifteen days for an operational period of four and a half years.

4. The sentence imposed at first instance is otherwise confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v NL [2011] QCA 113
PARTIES:	R v NL (applicant/appellant)
FILE NO/S:	CA No 256 of 2010 DC No 63 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application (Extension Granted)
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	3 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2011
JUDGES:	Fraser and Chesterman JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is allowed. 2. The appeal is allowed. 3. The sentence imposed in the District Court on 6 September 2010 is varied by: a. Reducing the term of imprisonment of four and a half years imposed on the count of stalking to three years; b. Setting aside the order that the term of imprisonment of six months imposed on the count of dangerous operation of a vehicle be served cumulatively upon the sentence for the count of stalking, and instead ordering that the sentence be served concurrently; c. Setting aside the order fixing the appellant’s parole eligibility date at 22 October 2011 and instead ordering that the term of imprisonment of four years imposed on the count of arson, and the term of imprisonment of three years imposed on the count of stalking, be suspended after serving one year, four months and fifteen days for an operational period of four and a half years. 4. The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty and was sentenced for offences of stalking, dangerous driving, burglary, arson, breach of bail and breach of release conditions – where the sentence for dangerous driving was ordered to be served cumulatively – where the applicant argued that the sentencing judge erred by not giving reasons for the order of cumulative imprisonment and that there was no basis for such an order to be made – whether the sentencing judge failed to give reasons – whether an order for cumulative imprisonment was within the sentencing judge’s discretion CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to four years imprisonment for the arson offence, four and a half years imprisonment for the stalking offence and six months imprisonment for the dangerous driving offence – where the effective sentence was five years and two months imprisonment with parole eligibility after 20 months – where the stalking offence took place over a period of 24 hours following the breakdown of a long term relationship and where the applicant was attempting to obtain funds to return to his family interstate – where the applicant argued the sentencing judge gave no or insufficient weight to mitigating features – whether the sentence imposed was manifestly…